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I listened to music on a Walkman. I read books in elementary school so that I could earn free personal-pan pizzas from Pizza Hut. I had a subscription to Tiger Beat, a magazine about teen celebrities that was printed on actual paper. I can’t stop calling things “awesomesauce” and addressing everyone as “dude.”

I know I’m really dating myself here. I should be as embarrassed as Angela Chase when she repeatedly misread Jordan Catalano’s signals. But, to be honest, outdated cultural references are one of my favorite things about dating myself.

My style, I know, is obsolete. I think I look frumpy in slouchy pants, so I’m sticking with my skinny jeans. I hate when any part of my socks is visible. My hair is parted to the side—it looks so nerdy parted in the middle! I know I’m still dating myself, but what do I care? At least the person I’m dating thinks I look hot.

Plus, the simultaneous orgasms are as satisfying as they are inevitable.

Dating myself comes with some difficulties, though, especially in social situations. When I take myself to parties, I find myself feeling as awkward as Felicity on her first day of college. It’s frustrating that I can’t trust myself to just independently mingle. I want to chat, carefree, with friends and acquaintances, but I have no idea what to do with myself.

As challenging as it can be to date myself around others, being alone with myself is often worse. In small doses, I find myself charming, but when I’m stuck with myself day in and day out, the George Clooney charisma quickly devolves into more of an Andy Dick vibe. I often wish I could have some time away from myself—like Ross and Rachel’s break. But then I imagine how annoying it would be to date someone who didn’t appreciate these pop-culture touchpoints, and I love dating myself all over again.

It’s not just our shared cultural memory. At my age, I’m just as liable to forget things, like the guy in “Memento.” But when you’re dating yourself, missing a date is no big deal, because the person you’re dating stood you up at the exact same time, and neither of you will ever know.

On the other hand, dating myself leaves me with nothing to distract me from myself. I can be hard on myself. Once I upset myself, I have no idea how to make myself feel better. When I have these problems with myself, I don’t even need my adjustable-size mood ring to confirm it: I’m sad.

Relationships are hard; they don’t come with an accordion-fold pamphlet of lyrics you can sing along to, like cassette tapes do, or a Rand McNally road map you can keep in your glovebox in case you get lost. Communication is key. That’s why, when troubles arise, I talk to myself.

My friends and family say they’re concerned about how much I talk to myself. They’re as nosy as my little brother was when he would eavesdrop on my phone conversations through the kitchen extension. I think they’re as jealous of my relationship with myself as Troy Dyer was of Lelaina’s relationship with Michael in “Reality Bites.”

But I told everyone that I’ll talk to myself as much as I want. Who needs them when I have myself?

So now it’s just me, dating myself. And it’s pretty awesomesauce, dude. ♦

On April 9th, Luke Marion, a gardener and seed purveyor who runs the YouTube channel MIgardener, posted a video that recommended planting particular crops for a “RECESSION PROOF Garden.” “We’re going to talk about twenty-one varieties that you need to add to your garden to survive the oncoming recession,” Marion narrates in a foreboding tone, standing with a rake over a back-yard planter. He continues, “The time to learn to swim is not once you’re swept out to sea from a riptide.” He suggests garlic, cabbage, tomatoes, and kale, among other vegetables—produce that will cut down on your grocery bills if you grow it yourself. Marion’s video, which has more than eighty thousand views, came in the midst of President Trump’s whipsawing global tariff announcements, which headlines predicted could kick off said recession. Marion wasn’t alone in offering agricultural solutions: “Having a vegetable garden can soften the blow of an economic downturn,” another gardening YouTuber advised last week. Others proposed foraging stinging nettles as “recession prep” or building a “Hydroponic & Aquaponic survival garden.”

Anecdotally, signs of a recession are already here. Hairdressers are reporting that their clients are ordering less expensive treatments. “I’ve been eliminated from their budget,” one aesthetician told Bloomberg. Young people are hosting home cafés, making their own cappuccinos and iced matchas in lieu of patronizing coffee shops. (The price of coffee is increasing under the new tariffs, and cafés are raising prices in turn.) In Washington, D.C., and elsewhere in the nation, applications to law school are up precipitously, a classic indicator that previously freewheeling young people are seeking more secure employment. Georgetown University reported a twenty-five-per-cent increase in the size of its applicant pool. Even if investors are slightly more confident this week, after Trump backed off most of his harshest tariff rates, the changes in people’s life-style habits serve as their own kind of affective barometer. The vibes are off; Americans are panicky and confused. In their addled state of mind, any unusual consumer behavior or trend seems like it might foretell a coming crash.

On social media, identifying “recession indicators” has become a meme. A Dunkin’ closing in downtown Boston, in the chain’s home state, is a recession indicator. As is Leslie Odom, Jr., reprising his original role in “Hamilton,” no doubt a lucrative gig. As are Coachella 2025 ticket buyers taking on debt with payment plans to afford their admission. Other recession indicators call back mordantly to the era of the 2008 financial crisis: a new album from the d.j. and producer Skrillex, a fixture of recession dance music; the return of the flash mob, an example of which was recently spotted in Los Angeles celebrating a single drop by the rapper Doechii; reinvigorated interest in “American Idol,” the peak form of two-thousands kitsch. (According to my parents, this season is better than ever.) Fresh music from OK Go and Bon Iver, who also released a co-branded tinned fish with the direct-to-consumer brand Fishwife, are throwbacks, as is “The Pitt,” the latest hot streaming show, a hospital drama starring Noah Wyle, of “E.R.” fame. The retreat to comfortingly familiar entertainment might be a variation of the “hemline index,” in which skirts are supposed to become shorter when times are good and longer when they are bad.

Bon Iver did not plan an album drop around Trump’s tariff plans, of course. Most of these indicators are meant as jokes, but like many internet memes, they hint toward a collective psychological state that’s reaffirmed with each Like and Share. Could a recession evoke feelings of nostalgia, recalling memories of the previous financial crisis, when the economy and labor force endured major damage but at least the international democratic coalition didn’t seem so shaky? For millennials who came into adulthood around 2008, the current atmosphere of pessimism triggers a kind of déjà vu. My college cohort graduated into a decimated job market, desperately seeking internships that were likely to be unpaid and casting about for gigs working in bars or cafés. There was some wan satisfaction to be found in the fact that youth culture at the time glamorized lo-fi grit: wearing plaid, drinking draft beer out of mason jars, Instagramming dive-bar photos with heavy filters that smoothed out any visual defects. In retrospect, there was a clarity to the Great Recession that is missing from our current moment. Now we’re confronting tides of artificial-intelligence slop and misinformation, with fewer strong media institutions to provide a sense of authority and a barely shared understanding of our political realities. We are more aware of the ways in which social crises (whether a global recession or a global pandemic) tend to benefit the already wealthy. The plethora of seeming indicators hints at the fact that we still don’t know precisely what’s coming down the line. Trump’s penchant for sudden policy reversals may mean that our 401(k)s will be fine, but what about the damage to our country’s reputation? The uncertainty being felt is not only economic. The recession is in our national character, too.

In January, a culture strategist named Edmond Lau posted a brief essay and graphic on X identifying a “dark mode shift” in culture and branding. In both form and content, the trend is toward the nihilistic. “If nothing matters, then everything - no matter how dark - is fair game,” Lau wrote. A mood board that he compiled showed how Charli XCX’s bouncy album “Brat” has been replaced as the musical style du jour by FKA Twigs’s gothic “Eusexua”; how a grinning Joe Biden has been swapped for a glowering, vengeful Trump in news coverage; how wellness culture has taken the warped shape of “American Psycho”-esque ads for Equinox. Lau’s observations went viral, inciting a wave of responses embracing the label “dark mode” with an attitude of ecstatic negativity. Like pointing out recession indicators, recognizing a dark-mode micro-trend reflects a state of hypervigilance: if we can detect the vibe shift first, then we might just survive it. In a follow-up essay that Lau co-wrote, he argued that the startup boom of the two-thousands created a culture of convenience and an appearance of innovation that has now dwindled: “a generation of youth are experiencing a brutal realization that nobody is coming to rescue them.” Hence, a turn toward self-reliance, whether in the form of back-yard gardening or ruthless self-optimization that anticipates Darwinian competition amid crisis. Regardless of whether there’s officially a recession, any collective sense of stability is out the window. As the essay notes, “acceptance of unknowing is integral.”

We could call our looming moment a Content Recession: whatever form it takes, it’ll be an economic downturn in which victims are tacitly encouraged to document their suffering on social media and become hardship influencers, romanticizing cooking meals at home, canning vegetables, and finding alternatives to careerist achievement. Goodbye, corporate girlies; hello, budget-conscious cottagecore. (So far, smartphones are exempt from Trump’s tariffs, the better to keep documenting ourselves, and TikTok, thank goodness, hasn’t been banned.) Growing your own produce was a popular pastime during the pandemic as well; the tools are probably still hanging out in our closets, ready to get dirty again. The only problem is that planting much of a garden requires having a home with a back yard, a comfort that many millennials gave up on ever achieving around 2008. Luckily, there is another viable form of influencer content that requires fewer resources: wilderness-survival videos. ♦

In a thrillingly delightful surprise—and that’s understating it—to many of us who’ve been working in universities for much of our adult lives, Harvard chose not to accede to the Trump Administration’s threats to its federal funding and announced on Monday that the university “will not surrender its independence or relinquish its constitutional rights.” The development was a stunning break from the submission to government coercion that, in recent decades, I’d come to expect.

When I was a law student at Harvard, during the Clinton and Bush Administrations, “don’t ask, don’t tell” was the U.S. military’s policy on gay service members. Many students wanted the school to protest by ending military recruitment on campus, but a federal law conditioned the receipt of funding on military access. Jeopardizing the university’s federal funding was a non-starter. Several years later, when I was a professor, the then dean, Elena Kagan, sent anguished yearly e-mails to the Harvard Law School community expressing support for gay equality but explaining that the school could not refuse the government and endanger funding on which the university depended.

Later, during the Obama Administration, the Department of Education’s Office for Civil Rights published a list of colleges and universities that it was investigating for allegedly inadequate responses to sexual assault. Harvard was on the list. Obama’s O.C.R. had said, in nonbinding guidance documents, that schools should adopt certain procedures for adjudicating campus sexual-assault complaints, including lowering the standard of proof to “more likely than not.” These preferences were not law, but the Administration treated them as if they were, saying that schools violating them were also violating Title IX, a statute that prohibits sex discrimination in educational institutions receiving federal funds. Some law professors, myself included, objected to the new procedures as unfair, and hoped that universities would legally challenge the government. But, amid the investigations, O.C.R. threatened the schools’ federal funding, putting them under intense pressure to reach a settlement rather than be found in noncompliance. As documented in an article I co-authored in 2016, we saw, instead of lawsuits, a series of “resolution agreements,” in which, one by one, universities agreed to do what the government demanded, regardless of whether the law required it.

Federal civil-rights enforcement is now in the hands of Donald Trump, whose Administration insists that universities are in flagrant violation. Laws that were enacted to end certain forms of discrimination are serving as weapons in the government’s war on higher education, as past efforts to protect constitutional rights—freedom of expression, diversity and equity initiatives, and protections for trans people—are themselves cast as forms of discrimination. Comply with its demands, the Administration has told dozens of leading universities, or face the loss of hundreds of millions of dollars—in Harvard’s case, billions of dollars. Universities, which are defined by academic independence yet depend on government support, are extremely vulnerable to government bullying. Harvard’s decision suggests that some, at least, have a limit to how far they’re willing to be pushed.

Two key civil-rights statutes—Title VI and Title IX—govern universities. Title VI, which bars discrimination “on the ground of race, color, or national origin” by entities that receive federal financial assistance, has become a newly favored tool for exercising control over freedom of speech and expression in schools, by pairing it with allegations of antisemitism. The statute, passed in 1964, does not mention religion, and its legislative history suggests that Congress considered including religion and decided not to. But, since the Bush Administration, the executive branch has said that the statute covers discrimination against Jews, on the theory that antisemitism involves not only religion but also “shared ancestry or ethnic characteristics.” (Some, though not all, federal district courts have deferred to this interpretation, but the Supreme Court and appellate courts have not decided whether it is correct.)

The First Amendment protects speech we might hate, including racist, sexist, and antisemitic language. That is a cost of free expression in a free country. Consistent with that principle, Trump, in his first term, issued an executive order instructing agencies to insure that universities receiving federal grants “promote free inquiry” consistent with the First Amendment. But there is apparently an exception to the Trump Administration’s commitment to free speech: a broad category of ideas and expression that it has classified as antisemitic. A month before the 2024 Presidential election, on the anniversary of October 7th, the Heritage Foundation, which produced Project 2025, published Project Esther, “a blueprint to counter antisemitism,” to be deployed “when a willing Administration occupies the White House.” As my Harvard colleagues Jesse Hoffnung-Garskof and Daphna Renan explained last month, in The Chronicle of Higher Education, Project Esther aims to render pro-Palestinian ideas, expression, and activity unacceptable, by convincing the public that they are equivalent to support for terrorism by Hamas. The document is explicit about the project’s goals: to make Jews feel that such expression is “a threat to their safety,” similar to how, when “most Americans hear ‘Klan,’ they immediately associate this homegrown American hate group with ‘bad.’ ”

Upon taking office in January, Trump issued an executive order vowing to use all available legal tools “to prosecute, remove, or otherwise hold to account the perpetrators of unlawful anti-Semitic harassment and violence.” The order instructed the Secretaries of State, Education, and Homeland Security to find ways of “familiarizing” schools with the Immigration and Nationality Act, which makes any non-citizen who “endorses or espouses terrorist activity” ineligible for admission to the United States. Within days, the Administration launched Title VI investigations into several schools, including Harvard Medical School. The Department of Health and Human Services sent a letter pointing to a New York Post article about medical students wearing kaffiyehs and Palestinian flags at this past spring’s commencement. Wearing such garb as a form of peaceful protest is constitutionally protected free speech. But the Administration is pressuring universities to treat even protected speech as creating a hostile environment for Jewish students under Title VI. The pressure is designed to make schools demonstrate compliance not only by severely disciplining pro-Palestinian protesters but also, consistent with the executive order, by reporting them to the federal government. The Administration has revoked hundreds of student visas, and since last month it has arrested and detained for possible deportation several non-citizens who were in the country lawfully when they participated in protests.

Last month, Trump’s O.C.R. sent letters to sixty schools about antisemitism, including nearly all in the Ivy League, warning that their federal funding was at stake. Title VI requires the government to provide a school with notice and a hearing, formally find that a particular program within the school is noncompliant, and send Congress an explanatory report at least thirty days before cutting off any money. The Administration halted at least hundreds of millions of dollars due to Columbia, Princeton, Cornell, and Northwestern each, without doing any of those things, while citing Title VI. If schools were to challenge the faulty rescissions in court, the violation of the statutory procedures alone would make for as straightforward a win on the merits as one could imagine. Leaders of Princeton and of Brown, which the Administration has also targeted for a potential halt in funding, made statements suggesting that they were open to defending their legal rights against the government; Columbia decided not to fight and agreed to most of the Administration’s demands. The Administration is now seeking a multiyear consent decree that would place Columbia under court supervision.

Trump is also using Title IX’s sex-discrimination ban, as a way to press schools to change policies affecting transgender students, interpreting the law to mean that recognizing trans women constitutes discrimination against other female students. One of Trump’s executive orders defined “sex” as “immutable biological classification as either male or female,” and another one directed that funds be cut off from schools that allow trans women to compete in women’s sports. The Administration announced that it was suspending federal contracts worth a hundred and seventy-five million dollars with the University of Pennsylvania, for allowing the student-athlete Lia Thomas to swim on the women’s team three years ago. (Penn’s president vowed to work to “understand and address” the terminations.) This move conveys to universities that, in order to keep their federal contracts, they should, at the least, forbid trans women from competing in accordance with their gender identity.

Bans on racial discrimination have proved useful to Trump's campaign against D.E.I., as the Administration has lumped together some programs and policies that are legal with others that are not. The Supreme Court, in Students for Fair Admissions v. Harvard, in 2023, declared race-conscious affirmative action in admissions unlawful, under Title VI. In February, O.C.R. issued a letter to the nation’s schools, extending S.F.F.A. to “all other aspects of student, academic, and campus life.” It warned that “treating students differently on the basis of race to achieve nebulous goals such as diversity, racial balancing, social justice, or equity is illegal,” and condemned D.E.I. programs for “smuggling racial stereotypes and explicit race-consciousness into everyday training, programming, and discipline.” This stretches the S.F.F.A. case, but not unrecognizably, and courts would likely accept the interpretation. Efforts to quash ideas, speech, and expression related to diversity, equity, and inclusion, however, are a different matter. In March, the U.S. Attorney Ed Martin sent a letter to Georgetown Law School, saying that it had come to his attention—presumably from a student or faculty member—that the school was continuing to “teach and promote DEI.” Martin deemed this “unacceptable” and stated that his office would not hire from a school that does so. The dean, William Treanor, who is a constitutional scholar, pushed back, writing that the First Amendment “guarantees that the government cannot direct what Georgetown and its faculty teach” and that it is unlawful to refuse to hire its students based on disapproval of the curriculum. “The constitutional violation behind this threat is clear,” he wrote. Universities that depend on federal funds generally do not have the confidence of a Dean Treanor to insist that the government must follow the law. His message was a signal to others that it was possible.

Last month, Harvard received the unsurprising news that the Trump Administration was reviewing nine billion dollars of federal contracts and grants because of the school’s alleged failure to protect Jewish students and its promotion of “divisive ideologies”—that is, diversity and inclusion—“over free inquiry.” (A week earlier, I signed one letter, from hundreds of Harvard faculty, urging the university’s leadership to “legally contest and refuse to comply with unlawful demands that threaten academic freedom,” and another, from more than ninety Harvard Law School faculty, addressed to students, stating that the rule of law is imperilled when the government retaliates against lawyers and seeks “public acts of submission.”) In a letter to the community, Harvard’s president, Alan Garber, initially vowed to “engage with” government officials to combat antisemitism while also “protecting our community and its academic freedom.” His tone was neutral, not defiant. It left open the possibility that Harvard would make a deal to undertake measures that it wanted to implement anyway and hope the Administration would be reasonably appeased. Then, last week, the university announced that it was moving to borrow seven hundred and fifty million dollars from Wall Street, a signal of plans to make do without the federal funds. While waiting on a statement from the school to that effect, last week, the Harvard chapter of the American Association of University Professors (of which I’m a member) filed a lawsuit to challenge the Administration’s “misuse of federal funding and civil rights enforcement authority to undermine academic freedom and free speech.”

Perhaps the Administration became impatient with the university and, as a result, overplayed its hand. Late on Friday night (coincidentally or not, as Jews were preparing to begin observance of Passover), it sent Harvard a letter that dispelled any illusion that the attempted coercion was for the purpose of combatting antisemitism and enforcing federal civil-rights law. Among other demands, the letter told Harvard to disempower faculty and administrators who are “more committed to activism than scholarship,” subject all hiring and admissions to a “comprehensive audit by the federal government” (at least during the Trump Administration), prevent admission of “students hostile to the American values and institutions,” and report to federal authorities any foreign student “who commits a conduct violation.” The pièce de résistance was a demand that Harvard employ an Administration-approved “external party” to conduct an “audit” of students, faculty, staff, and leadership “for viewpoint diversity, such that each department, field, or teaching unit must be individually viewpoint diverse.” The letter also mandated that Harvard abolish “ideological litmus tests”; whoever dreamed that up apparently didn’t consider how compliance with an ideological-diversity requirement could be monitored without them.

In light of the needs of Harvard’s scientific and medical-research communities, whose work stands to be gravely harmed by the loss of federal funds, it was reasonable to expect the university not to fight with the government. But the Administration made Harvard an offer it couldn’t not refuse. First, the illegality of the government’s threats was unambiguous: it intended to withdraw grant funds that have already been awarded but not paid, without complying with legal procedures. Furthermore, it was planning to commandeer the university’s academic activities and governance—which, in addition to causing immediate damage to academic freedom, would establish that civil-rights laws are merely tools for pressing the school into service of the government’s agenda. Harvard’s leadership was surely aware that bending to unlawful demands will not prevent a bullying government from making more of them. If anything, acquiescence would create a further basis to claim that the university is not compliant, which risks even more encroachments on academic freedom. The Administration’s effort to place Columbia under court supervision is a case in point. And the government’s letter to Harvard made clear that it would effectively put the university in receivership.

On Monday, Harvard responded to the Administration in a letter from its counsel, two well-respected conservative lawyers: William Burck, who also advises the Trump Organization, and the former special counsel Robert Hur, known for having described Joe Biden as a “well-meaning, elderly man with a poor memory.” The letter noted that the Administration’s demands contravene the First Amendment and federal law and rejected the premise of the ultimatum. “Neither Harvard nor any other private university can allow itself to be taken over by the federal government,” it said. “Harvard is not prepared to agree to demands that go beyond the lawful authority of this or any administration.” Harvard’s refusal to submit immediately brought on the expected retaliation, in the form of the government freezing more than two billion dollars of grant funds. In a statement, the Administration rebuked Harvard’s “troubling entitlement mindset” and said “the harassment of Jewish students is intolerable.”

The real point of the Administration’s moves is not to combat antisemitism, racism, or sexism, or even to promote free inquiry and the diversity of political viewpoints—all of which universities should be doing as part of their avowed missions. The goal is rather to bring the university, as a representative of major institutions of civil society, to its knees. In the narrow sense, Trump is attacking perceived centers of left monopoly power, in an extreme gambit to “own the libs.” In the broader sense, the moves are part of an attack on institutions, including the legal profession, nonprofit organizations, and the press, that play essential roles in a democratic society. And, in a development that has been decades in the making, civil-rights laws have been reduced to cudgels for coercing universities into subservience.

Harvard’s correct decision to resist this abuse of civil-rights statutes appeared to have an immediate effect on Columbia. On Monday, Columbia’s acting president, Claire Shipman, said in a statement that the university “would reject heavy-handed orchestration from the government” and “any agreement that would require us to relinquish our independence and autonomy as an educational institution.” But whether and how universities choose to fight back, their concern should not only be trying to get through the next four years relatively unscathed. The current crisis presents an historic opportunity to consider radical solutions to universities’ heavy dependence on federal funding. In truth, the independence that academic freedom requires is not really possible while the government retains the ability, during any Administration, to threaten the core functions of research and teaching.

Rather than relying on federal funding, Harvard, among other universities, could instead be willing to live on much, much less. This could mean that the university’s programs and activities would be less sprawling and that its faculty, staff, or student populations would shrink. The school could strive for excellence and integrity while doing fewer things. Many have noted that the scientific- and medical-research communities would be devastated by the loss of federal grants. That division in interests suggests that a large university’s longer-term strategic planning should include consideration of a solution that would be familiar to corporations when parts of their businesses face divergent regulatory risks: splitting off medical and public-health schools, hospitals, scientific labs, and other highly grant-dependent units. (In a possible foreshadowing, Harvard’s letter to the government on Monday described the medical and research hospitals as “separately incorporated and independently operated.”) That separate organization could continue to be heavily reliant on federal funding and compliant with government conditions for it. Other academic units could eventually become sustainable without federal money and would then be freer of government threats.

There is an argument that it is antithetical to the mission of a university to conceive of its various schools and departments as encumbering one another. The value of a single, unwieldy enterprise may be greater than the sum of its parts. Engaging in serious reflection on the question of what risks affect which segments of the university might well end up confirming shared values and a commitment to staying together. Such an inquiry would clarify the principles that will steer the university the next time it faces a crisis like this one. ♦

In March, the Trump Administration deported Kilmar Armando Abrego Garcia, a Salvadoran citizen who was living in Maryland with his family, to a notorious prison in El Salvador. After outrage grew over Abrego Garcia’s deportation, the Administration acknowledged that it was the result of an “administrative error.” A district court judge, Paula Xinis, ordered the government to “effectutate” Abrego Garcia’s return. Last week, the Supreme Court largely agreed with the decision, adding that “the intended scope of the term ‘effectuate’ in the District Court’s order is, however, unclear, and may exceed the District Court’s authority. The District Court should clarify its directive, with due regard for the deference owed to the Executive Branch in the conduct of foreign affairs.”

Meanwhile, the Administration has continued to ignore Xinis’s order, and has offered no explanation as to whether it has been doing anything to work toward bringing Abrego Garcia home. On Monday, Trump welcomed Salvadoran President Nayib Bukele to the Oval Office, where Bukele said that he had no intention of sending Abrego Garcia back to the United States. That same day, Trump’s advisor Stephen Miller contradicted the Administration’s previous, repeated statements that Abrego Garcia was sent to El Salvador by mistake, instead claiming that he was in fact supposed to be deported.

The Administration’s intransigence in the face of court orders, which has been a disturbing constant of the past several months, raises questions about whether the Supreme Court will put pressure on the Administration to follow the law. Last week, in a separate case, the Court ruled that the Administration could continue using a 1798 law, the Alien Enemies Act, to deport non-citizens, although those non-citizens have a right to due process to challenge their removals.

I recently spoke by phone about Donald Trump and the Supreme Court with Steve Vladeck, a professor of law at Georgetown, and the author of the Substack “One First.” During our conversation, which has been edited for length and clarity, we discussed how much the Supreme Court actually agrees with the Trump Administration on executive power, what happens now to the people sent to El Salvador, and why Chief Justice John Roberts may be putting off a confrontation that is inevitable.

You wrote recently, about the Supreme Court’s ruling in the Abrego Garcia case, “The deeper problem is that many (if not most) of us just don’t trust the Trump administration to behave on remand—which necessarily colors our view of the significance (and scope) of the wiggle room that last night’s ruling creates even as it unanimously rejected the broadest and most alarming claim put forth by the government.” Can you explain the ruling and what you mean here? Because it was one of those rulings where both sides claimed a certain amount of victory, right?

Yeah. So at the top level, at the highest level, I think it was a resounding loss for the Trump Administration, which had taken the position that federal courts were powerless in these circumstances—that once someone is in a Salvadoran prison, that’s it, and there’s nothing for the federal courts to do. It seems like a pretty important message for the Supreme Court to say that’s not true—that just because, you know, someone is in Salvadoran custody, at least physically, it doesn’t mean that the courts are powerless.

At the same time, as we saw in the hearing before Judge Xinis on Friday, the Court did not force the Trump Administration to do anything. And so it’s one thing to say, yes, federal courts have at least some power in these cases. It’s quite another to say that that includes the ability to demand that you return this person by this time, on this day. The Supreme Court didn’t do that.

But the Court did say, essentially, that the lower court could lay out steps to tell the Trump Administration what to do. You see a real difference between that and something much more direct?

I think it’s a bit broader. The Supreme Court did say that the federal court can order the Administration to “facilitate” Abrego Garcia’s return. But, in the same paragraph, it also said that the district court has to be sensitive to the deference that the executive branch is due in the context of foreign relations. And so if the Trump Administration shows up with a signed affidavit that says, We’ve washed our hands of this, we have no control, we have no ability to get him back, I don’t know that the Supreme Court’s decision gives the district court the power to disagree.

If the Administration does that, would the case just find itself back at the Supreme Court in a couple weeks?

I’m sure it would. There’s no question in my mind that this has become a test case both for the Administration and for the folks challenging the Administration. Because if the Administration really can evade judicial review, even functionally, if not formally, then what is to stop it from sending countless other people, citizens and non-citizens, to El Salvador under similar circumstances? And this is why I go back to how the Supreme Court’s intervention just hits differently because of who is currently in charge. We would not expect the Bush Administration or the Obama Administration or the Biden Administration to look at all of this like a Rube Goldberg device.

But did this decision seem to you like the conservative majority on the Court essentially trying to avoid a fight with Trump? Or is it that you think they have an idea of executive power that perhaps is different from yours or mine, especially when it comes to Republican Presidents, and that there may be some real agreement here? Because that’s different than wanting to avoid a fight.

I think it’s a mix of both, and I think it’s a mix of both in different proportions for different Justices. If you think about the six Republican appointees, I suspect that there are three or four for whom a lot of this is about executive power and not the Trump Administration. There are at least two, the Chief Justice and Justice Amy Coney Barrett, who I think are both less absolutist when it comes to executive power and more sensitive to the implications of judicial abdication at this moment.

But, going forward, you think that the Court needs to set some sort of red line?

I think a red line probably is the solution. And I think the problem is that the Court is very wary of drawing one. And it’s understandable, because you have a President who has been as critical of the courts as any we’ve seen in modern times, because you’ve had all of these attacks on lower-court judges and, frankly, because you have a Supreme Court that is less popular than it has been at any point in our lifetimes. Those things are all relevant.

The problem is that for all of the good arguments in support of this kind of temporizing by the Justices, we have an Administration that’s going to take any rope and run with it, that’s going to look at any temporizing and see a green light where others would have seen a yellow or a red light. I think the question for the Justices is, How much of that are they really willing to not just indulge but enable before they say, No further, no more? It seems like this is a powerful case for that, because it’s not just that you have Abrego Garcia sitting in this Salvadoran prison—it’s that you have the potential implications for so many others.

Would this case have been a good occasion for the Supreme Court to mention the way the Trump Administration has generally behaved in the lower courts? Justice Roberts is someone who in the past has commented when Donald Trump has said things about the judicial branch that he found outrageous or unfair.

It would have been unusual. And I think that’s all the more reason why I suspect the Court would be very cautious before taking such a step. I will say, I think, if anything, there was a stronger argument for doing that in the Alien Enemies ruling from last week because you had even more conduct unbecoming for the Justice Department in that litigation. The Court has only so much capital it can spend in this context, and yet, by not spending, it is doing nothing to disincentivize future misbehavior and future comparable misconduct by government lawyers.

The day after the ruling, Trump said that if the Supreme Court ordered Abrego Garcia home he would abide by that. Maybe we should not pay any attention to what Trump says. But it’s very rare for him to ever make a sort of plain comment that if someone asks him to do something he will do it. Is the Supreme Court acting weakly in a way that it doesn’t even need to?

I think that this Court still has a heck of a lot of capital to stand up to Trump, despite everything I said earlier about its diminished popularity. If you look at right-wing legal commentators, there are plenty who have been very critical of the Trump Administration’s behavior, both in the Alien Enemies Act case and in the Abrego Garcia case. But the question is not whether I think the Court has this capital. The question is whether it thinks it has this capital. I don’t know that the Court is caving. I think the Court is trying to sort of have its cake and eat it, too, by not caving on what we might call the top-level questions but by leaving the Administration with enough maneuvering room to not provoke a confrontation.

Let’s talk about the Alien Enemies Act case. What do you think that decision meant, and did you see the Court trying to walk a similar line?

I think they look very similar, especially with a couple days hindsight. On the one hand, you have a court that rejects the broadest argument the Trump Administration was making, which is that this two-hundred-and-twenty-seven-year-old statute allows it to basically engage in mass, summary removals of individuals who it says are gang members. And the Court rejected that. The Court was fairly emphatic that it was rejecting that. The majority opinion went out of its way to make a rule for forward-looking cases about the right of anybody to a hearing. And so at least for future cases I think it was a pretty sharp rebuke to the Trump Administration. But the Court said that those future cases have to be brought as habeas petitions, as opposed to the type of administrative-law challenge under which they had been brought in this case. That gave Trump a short-term win, by saying that the current case shouldn’t have been before this particular judge, and that means that these particular plaintiffs, many of whom are already in the Salvadoran prison, are, at least for the moment, out of luck.

Can you just explain what the administrative-versus-habeas distinction is?

If this sounds like a technicality, it’s because it is. A lot of lawsuits challenging federal-government policies come under a statute called the Administrative Procedure Act. You might think of that as sort of the generic way that you challenge federal-government policies. One of the virtues of the Administrative Procedure Act is there’s a bit of wiggle room about where you can bring such a lawsuit. And so in this particular case the challengers had filed in D.C. on the theory that that’s where the federal government is, even though none of the particular individuals the case was about are physically in D.C.

Habeas is a narrower and older remedy that’s designed for the specific purpose of inquiring into the legality of why a particular person is being held. And so it is a bit less effective historically for what we might call facial or structural challenges to government policies. It’s really more about, is this person rightly or wrongly detained? And, for better or for worse, for habeas cases, the Supreme Court has articulated something called the “district of confinement rule,” which is that if you’re held in the U.S. you have to sue where you’re being detained, which in the Alien Enemies Act case meant specifically that the case that was filed in D.C. should instead have been filed in the Southern District of Texas, because, at least when the case was brought, that’s where the named plaintiffs were being held. So the win for Trump was basically on just what’s the proper venue. The loss for Trump was that you cannot use this statute in this mass and summary way.

Does this encourage the government to move detainees around, to make it more difficult to get the venue right, or is that not relevant?

No, once jurisdiction attaches, it attaches. Which means that if you file in Texas while you’re in Texas, the government can’t defeat jurisdiction by moving you to Arizona. But what it incentivizes the Administration to do is to move everybody into the Fifth Circuit, so somewhere in Texas or Louisiana or Mississippi, because it will assume that the appeals court in the Fifth Circuit is going to be most sympathetic to both the broad arguments about the Alien Enemies Act even applying to something like Tren de Aragua, the gang which the Administration claims the men are part of, and then individual cases about whether Prisoner X is a member of the gang. But this decision really was a loss for the Administration, because the whole reason that it wanted to use the Alien Enemies Act was to not have to provide this kind of process anywhere. Having it provided in Texas, as opposed to in D.C., is still a lot more than the Administration wanted.

I think the frustration that the liberal dissenters had was both with regard to how the government had conducted itself in the district court and the lack of a remedy for all of the men up to that point who had been sent to El Salvador. By saying you’ve got to refile as habeas petitions, the due-process holding is great for future cases. The “you filed in the wrong court” holding kind of throws the current cases under the bus. You can, at least in theory, file a habeas claim from out of the country. But you have to refile or at least amend the pleadings and start over.

Is this distinction between habeas and the Administrative Procedures Act one that conservative Justices care about generally? It reminds me of the way a lot of conservative courts deal with cases of wrongfully imprisoned or convicted people in normal domestic situations, where there seems to be not much recourse when an innocent guy is sitting in prison.

I think it’s the same thing in the short term. In the long term, it won’t be because in a lot of those wrongful-conviction cases, procedural technicalities end up having litigation-foreclosing consequences: “You didn’t file in the right court and you are doomed.” Here they probably won’t. These folks still have claims, they still have lawsuits. This really feels more like a play for time than an effort to insulate this government action conclusively from judicial review.

So you think that the Court again was trying to walk a line here?

My answer is pretty similar, which is that there were five Justices in the majority in the Alien Enemies Act case, and I suspect that at least two of them, the Chief Justice and Justice Brett Kavanaugh, really were trying to split the difference in some meaningful respect. Justice Kavanaugh even writes this short concurrence where he says, I don’t understand why the dissenters are so upset. I think that’s very much what the Chief was doing, too. I don’t know that I feel the same about Clarence Thomas, Samuel Alito, and Neil Gorsuch.

But, there’s a broader point here, which is in some respects what you’re really seeing across all these cases: a passive-aggressive approach by the Supreme Court, where the Justices in each case are not closing the door on judicial review of what Trump is doing, where they’re not saying anything to suggest that what Trump is doing is lawful, but where they’re finding ways of skirting the substantive questions or ducking the substantive questions or channelling the substantive questions into other courts so that Trump is losing the war even while he’s winning these individual battles. And the problem with that approach is that it really is only a short-term one. It’s not sustainable in the long term because, eventually, if you let him win all the battles, what is left to fight?

What is going to happen with these men who were already sent to El Salvador?

So, technically, the D.C. case has not yet been dismissed. I think the judge is still trying to figure out whether there’s anything left for him to do, and it’s possible that the folks who were already removed to El Salvador might still be able to proceed in his court because they’re not subject to this district-of-confinement rule since they’re outside the United States. Even if that doesn’t happen, I think there will be an effort to bring a case on their behalf now that the Supreme Court in the Abrego Garcia case has rejected the notion that the federal courts are powerless over folks held in El Salvador. But what that drives home is that all of these interventions by the Supreme Court really are temporary. At some point it’s going to have to figure out whether it’s going to stand up to Trump or get out of his way. ♦

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This is drawn from “Questions Without Answers.”